2013 Year in Review from Transportation Law Today

2013 will likely be remembered for several significant transportation events, including the Lac Megantic and Metro North rail accidents. As I write today on New Year's Eve an active fire from a train crash and derailment involving crude oil is taking place in Casselton, North Dakota (here is the NTSB's initial press release). The event in South Dakota highlights other major trends from 2013: positive train control and the carriage of crude oil by rail. Finally, a review of 2013 would not be complete without a mention of the regulatory and political environment, significantly because some-what bi-partisan WRRDA bill (which many had great hopes of passage in 2013), will wait until 2014.

MAJOR RAIL ACCIDENTS

The June 2013 accident which destroyed a significant portion of the town of Lac Megantic, Quebec, and claimed over 40 lives, spurred quick action by Canada's rail regulator, and reciprocal action by the FRA. My prior posts explained some of those actions here, and here.

Following Lac Megantic efforts were made to address the classification of crude oil carried by rail, which may again gain more attention given the on-going situation in North Dakota. Crew size was another issue in Lac Megantic, which the regulators also addressed in the context of securing haz mat trains.

The December 1 Metro-North accident in New York city also raised crew size questions, as well as positive train control implementation. See my prior post here.

Although neither the Lac Megantic nor Metro-North accidents have had their investigations concluded, information released indicates likely causes: failure to secure the train on a grade (Lac Megantic), and crew error in Metro-North. Coming in 2014 will be the Rail Safety Advisory Committee recommendations following Lac Megantic, and possibly, action on the Commuter Rail Passenger Safety Act proposed shortly after the Metro-North accident.

POSITIVE TRAIN CONTROL

The state of Positive Train Control, and the current 2015 deadline for implementation, will continue to be a hot topic in the coming year. Even though the GAO acknowledged that many railroads could not meet the 2015 deadline, it seems unlikely any wholesale moving of the deadline will occur given recent high profile train accidents. My best prediction is that some case by case relief for portions of PTC systems or tracks may be granted in an effort to get operational as much as possible by 2015.

CRUDE BY RAIL

I expect growing regulatory and public attention to crude by rail shipments, again highlighted by what is currently happening in North Dakota. Crude by Rail, as with Haz Mat by rail, is clearly a safe mode of transport given the huge volumes moved without incident. However, when accidents occur they tend to be memorable given the product being moved. On-going efforts from the RSAC on operational issues, as well as a renewed focus on tank car safety standards will certainly continue.

WRRDA I HARDLY KNEW YA

Now to the blue and brown water worlds... the continuing fate of the now-termed WRRDA bill and its path through a divided congress will continue into 2014. The bill's remedy for the monumentally over-budget Olmstead Lock and Dam project, aka the "Kentucky Kickback" seems to have survived some initial hype when the deal emerged as part of the government shut-down end. Both houses of Congress have appointed conferees to iron out differences between the Senate bill passed in May 2013, and the later house bill.

Is WRRDA an example of a deeply divided congress prioritizing infrastructure investment? Perhaps, but it also may be low hanging fruit in the sense that WRRDA is what could be accomplished in a bi-partisan way with relatively little controversy. In any event, the bill has yet to be passed by congress, which is likely to happen in early 2014.


Thanks to our readers and best wishes to all for safe and joyful New Year in 2014.

- Paul J. Loftus, December 31, 2013

EPA to Fund Air Quality Improvement Projects at Ports

The Environmental Protection Agency (EPA) has published a Request for Proposals to allocate $4 million for air quality projects at ocean and inland ports under the Diesel Emissions Reduction Act (DERA). The RFP homepage and related information are attached here.

The EPA anticipates awarding funds to public port authorities with jurisdiction over transportation or air quality at ocean or inland ports. Although private entities are not eligible, they may partner with eligible port authorities on projects. EPA, according to the RFP will fund, at various percentage levels, the following types of projects:

- Exhaust Control Technologies
- Certified Engine Upgrades
- Engine Idle Reduction Technologies
- Certified Engine Repower
- Vehicle Replacement (non-road diesel vehicles/drayage trucks)
- Clean Alternative Fuel Conversions

The potential funding does not apply to already mandated emission reductions for certain locomotive and marine engines. (see RFP at pg. 2). Proposals are due February 13, 2014.

NY Rep. Proposes Funding for PTC in Wake of Metro-North Accident

Positive Train Control, and the current statutory deadline for railroads to implement the technology of December 31, 2015, is once again front and center news following the December 1 Metro-North commuter rail accident. The accident, apparently caused by a speeding train, caused 4 deaths and dozens of injuries.

Congressman Sean Patrick Maloney (D-NY) has proposed new legislation titled the "Commuter Rail Passenger Safety Act" in a recent press release. The proposed legislation has not been released, but is intended to assist commuter rail lines in implementing PTC.

Specifically, the proposed law would provide access to Federal Railroad Administration loan guarantees under its Railroad Rehabilitation & Improvement Financing program (RRIF), which provides both direct loans and loan guarantees. Also, the law proposes reauthorizing the Railroad Safety Technology Grant Program, which fell victim to the recent budget battles and expired on October 1, 2013.

Other news related to the Metro-North accident, is the NTSB's revocation of "Party Status" to the investigation of the union which represents the train's engineer. The NTSB removed the Association of Commuter Rail Employees (ACRE) from the investigation for discussing details of the on-going investigation, a violation of the NSTB's "Party Agreement." This NTSB press release explains.

Prior the recent Metro-North accident, there seemed to be consensus that not all railroads would meet the December 2015 PTC deadline, with the GAO recommending that Congress permit the FRA to grant case-by-case extensions and approve alternative technologies (see my post of 9/17/13 on the GAO's report here). In the post Metro-North environment, the question is whether significant extensions to the current PTC deadline will be granted or not.